Approval and Promulgation of Air Quality Implementation Plans; Pennsylvania; Proposed Disapproval of the NOINFX/INF RACT Determination for Pennsylvania Power Company

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 52

[PA 058-4039; FRL-5876-5]

Approval and Promulgation of Air Quality Implementation Plans;

Pennsylvania; Proposed Disapproval of the NOX RACT

Determination for Pennsylvania Power Company

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to disapprove a State Implementation Plan

(SIP) revision submitted by the Commonwealth of Pennsylvania's

Department of Environmental Protection (PADEP). This revision withdraws

EPA's previously proposed approval of the nitrogen oxide

(NOX) reasonably available control technology (RACT)

determination submitted by PADEP for Pennsylvania Power Company--New

Castle plant (PPNC), located in Lawrence County, Pennsylvania and,

instead, proposes to disapprove the SIP revision pertaining to this

facility. The intended effect of this action is to propose disapproval

of the NOX RACT determination submitted by PADEP for PPNC.

DATES: Comments must be received on or before September 17, 1997.

ADDRESSES: Comments may be mailed to David L. Arnold, Chief, Ozone/CO

and Mobile Sources Section, Mailcode 3AT21, U.S. Environmental

Protection Agency, Region III, 841 Chestnut Building, Philadelphia,

Pennsylvania 19107. Copies of the documents relevant to this action are

available for public inspection during normal business hours at the

Air, Radiation, and Toxics Division, U.S. Environmental Protection

Agency, Region III, 841 Chestnut Building, Philadelphia, Pennsylvania

19107; Pennsylvania Department of Environmental Protection, Bureau of

Air Quality, P.O. Box 8468, 400 Market Street, Harrisburg, Pennsylvania

17105.

FOR FURTHER INFORMATION CONTACT: Cynthia H.Stahl, (215) 566-2180, at

the EPA Region III office above or via e-mail at

[email protected]. While information may be requested via

e-mail, all comments must be submitted in writing to the EPA Region III

address above.

SUPPLEMENTARY INFORMATION:

Background

On April 19, 1995, PADEP submitted a revision to the Pennsylvania

SIP requesting EPA approve RACT determinations it had made for several

facilities, including PPNC. Only the RACT determination submitted for

PPNC is the subject of this rulemaking action. The revision consists of

an operating permit, OP 37-023, for PPNC. The other plan approvals and

operating permits submitted on April 19, 1995 are the subject of other

rulemaking actions.

On April 9, 1996, EPA published a direct final rule in the Federal

Register (61 FR 15709). This document stated that EPA was approving,

without prior proposal, 21 source-specific RACT determinations made and

submitted by PADEP for facilities located in Pennsylvania. Included

among these 21 source-specific RACT determinations was one for PPNC.

The document also stated that unless adverse comments were received

within 30 days of publication, EPA's RACT determinations for these 21

facilities would become final. The accompanying proposed rulemaking,

which appears with every direct final rule, was also published on April

9, 1996 ( 61 FR 15744).

On May 8, 1996, New York Department of Environmental Conservation

submitted a letter stating that it intended to adversely comment on

EPA's action to approve PADEP's RACT determination for PPNC. Therefore,

on June 11, 1996, EPA published a document withdrawing the final rule

approving PADEP's RACT determination for PPNC, among other facilities

(61 FR 29483). At the request of the commenters, EPA also extended the

comment period twice; the last time until August 2, 1996 (61 FR 29483

and 61 FR 37030).

On June 28, 1996, NYDEC submitted comments to EPA pertaining to

PADEP's RACT determination for PPNC. On July 15, 1996 and August 1,

1996, PPNC submitted comments to EPA addressing issues raised by NYDEC.

On August 2, 1996, Pennsylvania DEP submitted comments to EPA stating

that EPA should proceed with final approval of the PPNC RACT

determination. The comments received by EPA are summarized below and,

in more detail, in the technical support document (TSD) prepared by EPA

in support of this proposed action to disapprove PADEP's SIP revision

for PPNC submitted on April 19, 1995. Copies of the TSD are available,

upon request, from the EPA Region III office listed in the ADDRESSES

section of this document.

This action proposing to disapprove PADEP's April 19, 1995 SIP

revision request for PPNC being taken under section 110 of the Clean

Air Act.

Comments Received on EPA's April 9, 1996 Proposal to Approve

PADEP's RACT Determination for PPNC

NYDEC Comments:

NYDEC states in its June 28, 1996 comment letter that it disagrees

with EPA's proposal to approve PADEP's RACT determination for PPNC.

NYDEC states that it believes that the control efficiencies for add-on

emission controls are understated in the PADEP technical support

document, the costs for add-on controls are overstated, the 15-year

cost-recovery period used in the PPNC RACT analysis is too short, and

that NOX add-on control technology is technically and

[[Page 43960]]

economically feasible for the boilers at PPNC. In addition, NYDEC

states that another indication that the economic analysis is flawed is

the inconsistency in final NOX emission limits depending on

how the emission limits are calculated. NYDEC further states that

PADEP's acceptance of PPNC's use of a lower NOX emission

rate (and non-enforceable emission rate) to perform the cost analysis

to show that any emission controls are infeasible, but a higher

NOX emission rate (i.e. the proposed RACT emission limits)

to determine total NOX emissions allowed, is inconsistent

with its (NYDEC's) State Implementation Plan (SIP) experience in

establishing enforceable emission limits and determining the cost-

effectiveness of controls for RACT. NYDEC's comments included a table

of calculations showing the total NOX emissions using the

proposed RACT (SIP) emission limits and the calculated emission limits

using the emission caps proposed as part of the PPNC RACT

determination. NYDEC states that PPNC appears to have used lower

emission limits to evaluate the economic feasibility of control options

but did not agree to make those lower emission limits enforceable as

part of the RACT determination.NYDEC states that the PADEP October 14,

1996 memorandum seriously underestimates the effectiveness of low

NOX burner (LNB) controls. PADEP estimates that emission

reductions of approximately 30% are expected for the operation of LNB

while NYDEC believes that emission reductions on the order of 40-50%

are more realistic. NYDEC states that the Title IV Phase I limits

(under the acid rain program) estimate that reductions of 40-50% are

achievable and at costs well below those estimated in the PPNC RACT

proposal submitted to PADEP.

Pennsylvania Power--New Castle Comments:

On July 15, 1996 and August 1, 1996, the firm of Fried, Frank,

Harris, Shriver & Jacobsen submitted comments to EPA on behalf of their

client, Pennsylvania Power Company. In summary, the commenter states

that the Company pursued a Company-wide NOX emission

reduction strategy to achieve 55% NOX reduction consistent

with the goals of the Ozone Transport Commission's (OTC) NOX

Memorandum of Understanding (NOX MOU). The commenter also

states that the NOX emission caps agreed to by PPNC for

Units 3 -5 represent a 55% NOX emission reduction from

potential emission levels. The commenter further states that the New

Castle plants emissions are small relative to the rest of the

Pennsylvania Power System and that PPNC's Units 3--5 represent 12% of

the total Pennsylvania Power System NOX emissions. The

commenter, on behalf of the Company, states that its Mansfield plant

has installed low-NOX burners and, that these, in

combination with lowered emissions from the shut down of PPNC's units 1

and 2, result in Pennsylvania Power achieving a 51% potential emission

reduction. PPNC states that determination made by PADEP that any

control technology is technically or economically infeasible, was based

on existing Pennsylvania regulations. The commenter asserts that the

determination was made by relying upon procedures approved by EPA for

making NOX RACT determinations and by relying on emission

caps for units 3, 4, and 5 to restrict capacity and emissions. These

emission caps were factored into the RACT determination, resulting in

unreasonable costs for add-on controls. These procedures were

referenced as: 25 Pa Code Sec. 129.91 and ``PADER, Guidance Document on

Reasonably Available Control Technology for Sources of NOX

Emissions (March 10, 1994).'' The commenter states that the RACT

determination for PPNC submitted by PADEP was supported by accompanying

documentation, which included a description of the control technology

options, costs, and control effectiveness. The commenter cites the PA

NOX RACT guidance document and EPA's March 16, 1994

memorandum as part of its evidence that the technically feasible

control options were properly deemed economically infeasible. The

commenter included as part of its comments, additional vendor

information, supplied to support the RACT determination, that add-on

controls are economically infeasible for the PPNC units. The commenter

states that the vendor has extensive experience in the design and

installation of low NOX burners including those at Ohio

Edison/Penn Power's Edgewater, Sammis, and Mansfield plants. The

commenter concludes that the selection of no controls as RACT for the

PPNC boilers is a legitimate RACT determination using the PADEP and EPA

policies and guidance. The Company believes that substituting NYDEC's

analysis for the one done by PADEP, or substituting data submitted by

NYDEC for that originally considered by PADEP, would be a violation of

the principles of administrative law.

Pennsylvania DEP Comments:

On August 2, 1996, Pennsylvania DEP submitted a short statement

that it sees no justifiable reason to change its RACT determination and

urged EPA to approve the PPNC RACT determination as it was submitted.

In addition to PADEP's August 2, 1996 letter, EPA received, via fax on

July 29, 1996, a document showing how PADEP calculated the

NOX RACT emission limitation for PPNC unit 3 using

continuous emission monitoring (CEM) data. The actual methodology is

contained in the March 1996 Pennsylvania NOX RACT Guidance

Document, which has not been submitted or approved as part of the

Pennsylvania SIP. The faxed material shows the data used by PADEP to

calculate the PPNC NOX emission limits. Briefly, the PADEP

formula used to calculate a NOX emission limit specifies the

use of the mean 30-day NOX CEM average plus 2.78 standard

deviations. Using this formula, PADEP calculated the NOX

emission limit for unit 3 (using first- and second-quarter 1995 CEM

data) to be 0.531 + 2.78(0.0929) = 0.79 lbs/mmBTU. The NOX

emission limits for units 4 and 5 were calculated similarly.

Relevant Information

A survey of other boilers similar to PPNC's (dry-bottom, wall-

fired, coal burning) show that in the ozone transport region (OTR),

which includes the states in the northeast U.S., uncontrolled emission

levels average 0.54 lbs NOX/mmBTU. Controlled emission

levels for this same group of boilers can meet, on average, 0.47 lbs

NOX/mmBTU. The add-on controls generally used for these

boilers are low NOX burners. Across the country, which would

include areas that are designated attainment for ozone and are,

therefore, not required to implement NOX RACT, uncontrolled

emission levels for boilers similar to PPNC average 0.72 lbs

NOX/mmBTU. Controlled emissions for this nationwide group of

boilers average 0.47 lbs NOX/mmBTU. In EPA Region III

(consisting of the states Pennsylvania, Maryland, Delaware, Virginia,

West Virginia and the District of Columbia), there are 31 boiler units

that are of similar type to PPNC's boilers. Forty-five percent of these

31 boilers have low NOX burners installed. There are 20

boiler units that are similar to PPNC's boilers in Pennsylvania; 55% of

these boilers have low NOX burners or LNB with overfired air

installed as emission controls.

A review of the CEM data for PPNC shows that NOX

emissions at this facility, which does not have any NOX add-

on controls, have been between 14 and 58% lower than the RACT emission

limits proposed by the Company and determined by PADEP to be RACT. No

CEM data is available for units 1 and 2 since the CEM requirement did

not start

[[Page 43961]]

until after those units were shut down. The CEM data for units 3

through 5 are available from the last quarter of 1993 through the last

quarter of 1996. The CEM data is required to be reported by the Company

to both PADEP and EPA.

Under the Clean Air Act's Title IV (Acid Rain) requirements, EPA

conducted final rulemaking for the Phase I, Group I boilers (including

dry-bottom, wall-fired units such as PPNC's) (60 FR 18751, April 13,

1995). This final rule was the result of a court ordered remand of the

March 22, 1994 Phase I, Group I boilers final rulemaking (FR CITE).

Both the March 22, 1994 and the April 13, 1995 rulemakings state that

LNB technology is a technically feasible and cost effective option for

utility boilers such as PPNC's. The April 1995 rule states that LNB

costs are on the order of $226/ton NOX removed and proposes

an emission limit of 0.5 lbs NOX/mmBTU. The information

gathered under the acid rain provisions of the Act are relevant and

pertinent to the PPNC RACT determination. Other literature pertaining

to utility boilers and feasibility of controls also indicate that the

installation of NOX controls is cost effective. This

information is discussed in more detail in the TSD prepared for this

proposal which is included in the rulemaking docket and available to

the public.

Prior to PPNC's July 1994 NOX RACT proposal to PADEP,

and during the time that PPNC and PADEP were working to develop a RACT

proposal for submittal to EPA, EPA proposed NOX emission

limitations under the Title IV acid rain program. EPA's acid rain

proposal occurred in November 1992 and was finalized in March 1994. The

March 1994 rule was later vacated and EPA reissued the final rule in

December 1996. Under the acid rain program, on May 10, 1994, PPNC

applied to accept federally enforceable permit conditions to limit the

NOX emissions at units 1 and 2 to no more than 0.5 lbs/mmBTU

on an annual average. Units 1 and 2 were volunteered by the Company as

Phase I substitution units, meaning that in exchange for the 0.5 lbs/

mmBTU emission limits on those boilers, the Pennsylvania Power parent

company would be allowed to have boilers elsewhere in the Company,

subject to the acid rain Phase I requirements, continue to emit at

higher than otherwise allowable levels. EPA approved the Company's

request through a permit issued on November 28, 1994, prior to the PPNC

NOX RACT submittal date of April 19, 1995.

The currently operating units 3-5 are Phase II acid rain units and

will be subject to compliance with a 0.5 lbs NOX/mmBTU,

annual average, emission limit by the year 2000. On December 26, 1996,

the Company requested early compliance with the Phase II requirements.

In so doing, PPNC units 3 through 5 will be required to meet the Phase

II requirements by January 1, 1997. The early election option allows

sources to meet the Phase II requirements prior to the compliance date

and relieves those sources from meeting the more stringent emission

limit of 0.46 lbs/mmBTU until 2009. PPNC would have otherwise been

required to meet this more stringent emission limitation by 2000.

EPA's Analysis

EPA has reviewed and considered all the information submitted by

the commenters and has reconsidered its original decision based on

those comments. The RACT determination, including the emission limits,

as submitted by PADEP on April 19, 1995 and proposed for approval by

EPA on April 9, 1996 (61 FR 15709) cannot be supported in light of all

available information, including the additional information and

comments submitted by PADEP and PPNC during the public comment period

and other relevant publicly available information. Therefore, EPA is

hereby withdrawing its April 9, 1996 proposed approval of PADEP RACT

determination for PPNC and is proposing, instead, to disapprove PADEP's

RACT determination for PPNC submitted to EPA on April 19, 1995.

EPA initially proposed to approve the emission limits determined by

PADEP to be RACT because the PPNC RACT submittal, on its face,

including the analysis done by PADEP (without reference to relevant

information in existence but not contained in the submittal) appeared

to meet the criteria for RACT determinations. EPA understood from PADEP

that its analysis, as described in its technical support document for

the PPNC RACT determination, was performed in accordance with proper

procedures.

However, due to the submittal of adverse comments, EPA has reviewed

the issues raised regarding the PPNC RACT proposal and determined that

the information provided does not support PADEP's RACT determination

for PPNC.

All five boilers, including units 1 and 2 that are now shut down,

are dry-bottom, single-wall-fired, coal-burning boilers. Units 1 and 2

were the smallest boilers at this facility and were rated at 495 mmBTU/

hr and 640 mmBTU/hr, respectively. Units 3 through 5 are rated at 1029,

1029, and 1325 mmBTU/hr, respectively. The cost infeasibility arguments

for the installation of any controls at PPNC are not supported by the

body of literature and information available, particularly in light of

the fact that many other dry-bottom, wall-fired, coal burning boilers

have been able to install emission controls and meet lower emission

limits. Fundamentally, neither PPNC nor PADEP has adequately

demonstrated that the installation of emission controls is not

technically or economically feasible. Details of the information

pertaining to PPNC are discussed in the accompanying TSD available from

the EPA Region III listed in the ADDRESSES section of this document.

Furthermore, although units 1 and 2 were shut down in 1993, the

Company agreed to accept an effective, federally enforceable

NOX emission limit of 0.5 lbs/mmBTU under the acid rain

program. Therefore, EPA has determined that the proposed RACT limits of

0.93 lbs NOX/mmBTU and 0.90 lbs NOX/mmBTU for

units 1 and 2, respectively, are too high.

Additionally, PADEP has subsequently submitted a separate request

to EPA to approve the early implementation of the acid rain Phase II

emission limits of 0.5 lbs NOX/mmBTU for units 3, 4 and 5.

Therefore, the proposed NOX RACT limits of 0.79 lbs/mmBTU,

0.72 lbs/mmBTU and 1.01 lbs/mmBTU are also too high. Without additional

analysis and information, it would be erroneous and premature to

conclude that the limits in the acid rain permit are RACT. Therefore,

any statements in this document regarding the acid rain requirements

should not be construed as pre-determining what RACT might be for the

PPNC boilers.

The CEM data for units 3 through 5 indicate that even without

emission controls, the NOX emission rates for these units

are well below the proposed NOX RACT emission limits of 0.79

lbs/mmBTU, 0.72 lbs/mmBTU and 1.01 lbs/mmBTU for units 3, 4 and 5,

respectively. Please refer to the TSD for a summary of the CEM data.

Therefore, EPA believes that the proposed NOX RACT emission

limits are too high and do not represent the ``lowest emission rate

[PPNC] is capable of meeting by the application of control technology

that is reasonably available considering technological and economic

feasibility.'' 1

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\1\ 25 Pennsylvania Code, Chapter 121, definition of RACT;

December 9, 1976 memorandum from Roger Strelow, Assistant

Administrator for Air and Waste Management, to all Regional

Administrators.

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The public notice and comment procedures required by the Federal

rulemaking process for actions taken to approve or disapprove SIP

revisions,

[[Page 43962]]

including PADEP's source-specific SIP revisions to determine RACT on a

case-by -case basis for companies such as PPNC, allows interested

parties to comment on whether the information, rationale, procedure and

conclusions are appropriate for the subject source(s). The process is

designed to allow interested parties to question the proposal by

challenging EPA's rationale for its rulemaking action, including

pointing out gaps in information or information that may have been

overlooked in the original proposal. By its re-analysis, performed

subsequent to and in consideration of the issues raised by NYDEC's

comments, EPA has determined that PPNC did not follow the Pennsylvania

RACT regulation or EPA's requirements when it submitted its RACT

proposal to PADEP. Furthermore, EPA has determined that PADEP, in

reviewing and analyzing PPNC's RACT proposal, did not determine and

impose RACT in accordance with its regulation's definition and the

Federal definition of RACT. EPA's reconsideration of the PPNC RACT as a

result of such public comment is the kind of action supported by the

law.

Both Pennsylvania and the Company indicated that they relied on the

Pennsylvania's March 10, 1994 RACT guidance document in developing the

PPNC RACT proposal. This RACT guidance document was not submitted by

PADEP with the April 19, 1995 PPNC RACT package nor at any other time

as part of the SIP revision. The Company included this document in its

July 15, 1996 response to EPA's proposed rulemaking notice. In a June

26, 1997 letter to PA DEP, EPA stated that it had no record of this

document being subjected to public notice and comment. Furthermore, EPA

stated that the March 10, 1994 DEP RACT guidance document contained

procedures and methods that EPA finds inconsistent with the definition

of RACT. Consequently, following the procedures in the March 10, 1994

DEP RACT guidance document does not guarantee that the RACT proposal is

approvable by EPA. EPA has determined that the PPNC RACT proposal is

not supported by the information in the record. EPA's review of this

material indicates the proposed RACT emission limits for PPNC submitted

on April 19, 1995 are unsubstantiated and cannot be approved. EPA is

soliciting public comments on the issues discussed in this document and

on other relevant matters. These comments will be fully considered

before taking final action. Interested parties may participate in the

Federal rulemaking procedure by submitting written comments to the EPA

Regional office listed in the ADDRESSES section of this document.

Proposed Action

EPA is withdrawing the proposed approval published on April 9, 1996

in the Federal Register and is, instead, proposing to disapprove the

RACT determination submitted by PADEP on April 19, 1995 for the

Pennsylvania Power--New Castle plant, located in Lawrence County.

Nothing in this action should be construed as permitting or

allowing or establishing a precedent for any future request for

revision to any state implementation plan. Each request for revision to

the state implementation plan shall be considered separately in light

of specific technical, economic, and environmental factors and in

relation to relevant statutory and regulatory requirements.

Administrative Requirements

Executive Order 12866

The Office of Management and Budget (OMB) has exempted this

regulatory action from E.O. 12866 review.

Regulatory Flexibility Act

Under the Regulatory Flexibility Act, 5 U.S.C. 600 et seq., EPA

must prepare a regulatory flexibility analysis assessing the impact of

any proposed or final rule on small entities. 5 U.S.C. 603 and 604.

Alternatively, EPA may certify that the rule will not have a

significant impact on a substantial number of small entities. Small

entities include small businesses, small not-for-profit enterprises,

and government entities with jurisdiction over populations of less than

50,000.

This proposed action impacts one source, Pennsylvania Power's New

Castle plant. Therefore, EPA certifies that this disapproval action

does not have a significant impact on small entities.Furthermore, as

explained in this document, the request does not meet the requirements

of the Clean Air Act and EPA cannot approve the request. Therefore, EPA

has no option but to propose to disapprove the submittal.

Unfunded Mandates

Under section 202 of the Unfunded Mandates Reform Act of 1995

(``Unfunded Mandates Act''), signed into law on March 22, 1995, EPA

must prepare a budgetary impact statement to accompany any proposed or

final rule that includes a Federal mandate that may result in estimated

costs to State, local, or tribal governments in the aggregate; or to

private sector, of $100 million or more. Under section 205, EPA must

select the most cost-effective and least burdensome alternative that

achieves the objectives of the rule and is consistent with statutory

requirements. Section 203 requires EPA to establish a plan for

informing and advising any small governments that may be significantly

or uniquely impacted by the rule. EPA has determined that the

disapproval action proposed does not include a Federal mandate that may

result in estimated costs of $100 million or more to either State,

local, or tribal governments in the aggregate, or to the private

sector.

The Administrator's decision to approve or disapprove the SIP

revision submitted by PADEP for Pennsylvania Power's New Castle plant

will be based on whether it meets the requirements of section

110(a)(2)(A)-(K) and part D of the Clean Air Act, as amended, and EPA

regulations in 40 CFR part 51.

List of Subjects in 40 CFR Part 52

Environmental protection, Air pollution control, Hydrocarbons,

Nitrogen dioxide, Ozone.

Authority: 42 U.S.C. 7401-7671q.

Dated: August 8, 1997.

Thomas Voltaggio,

Acting Regional Administrator, Region III.

[FR Doc. 97-21805 Filed 8-15-97; 8:45 am]

BILLING CODE 6560-50-F